1. The separate maintenance statute ( R.S. 2:50-39) was intended to afford a direct remedy to a wife living apart from her husband with his consent or acquiescence.
2. The husband's legal duty to support his wife does not cease by reason of her absence from his home at his instance or with his consent. It is only when he desires her presence in his home that her presence in that home can be made a condition precedent to his obligation of support.
3. As between husband and wife, undivorced, the Court of Chancery must derive its sole authority to decree maintenance and support from the statute dealing with separate maintenance. R.S. 2:50-39.
4. From the evidence it clearly appears that the wife left the defendant husband and has remained away from him with his acquiescence and at his desire, and that at the time of the filing of the bill the defendant was not suitably supporting her. Complainant was therefore justified in filing her bill and is entitled to a decree for a reasonable and proper allowance for her support and maintenance.
PER CURIAM.
The decree appealed from will be affirmed, for the reasons stated in the opinion of Advisory Master Herr in the Court of Chancery.
For affirmance — DONGES, PERSKIE, PORTER, DEAR, WELLS, WOLFSKEIL, HAGUE, JJ. 7.
For reversal — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, HEHER, RAFFERTY, JJ. 6.